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Medical Jurisprudence

Behavioral Sciences Term St. Georges University School of Medicine

Visiting Professor Thaddeus Pope, JD, PhD

Segment 8 of 8

Death & Dying

Objectives

1. What is decision making capacity

2. What is an advance directive

3. Understand a patient’s right to refuse life-saving treatment

3. What are the 3 types of substitute decision makers

4. Understand the difference between the 2 SDM decision making standards

5. Appreciate the difference between active and passive means of hastening death

6. Identify “passive” mechanisms for hastening death

7. Identify “active” mechanisms for hastening death

8.What is the legal standard for determining death

9.What are treatment duties after death

An individual . . . . . is dead . . . who has sustained either

(1) irreversible cessation of circulatory and respiratory functions, or

(2) irreversible cessation of all functions of the entire brain

Consent not required to stop LSMT

Not a patient

Dead

Not a patient

No duty to treat

“After a patient . . . brain dead . . . medical support should be discontinued.”

“Once death has been pronounced, all medical interventions should be withdrawn.”

The rule almost everywhere

Duty to accommodate religious objections to brain death

Right to refuse

“The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.”

- Cruzan v. Missouri DOH (1990)

Patient may refuse treatment even if life-saving

Ventilator CANH (= med Tx) Dialysis CPR Antibiotics

Who is to say if amount life left to a patient is worth living Person herself

State interests Preservation life Prevent suicide Protect 3rd parties Integrity med profession

Almost always outweighed by patient’s right to self-determination

Easier situation

Contemporaneous patient refusal

“Disconnect the vent”

Tougher situation

When patient now lacks capacity

Many patients lack capacity at the end of life

DNR only means “no CPR”

It does not mean “do not treat”

Prospective Autonomy

Patient is competent + patient has capacity to make the decision at hand

Patient decides

Patient not lose right of self-determination when lose capacity

Who decides

What standards

Advance directive

Substitute decision maker

Advance Directive

Patient lacks capacity but left instructions while did Instructions available Instructions apply to present circumstances

Follow instructions (self-executing)

SDM bound by instructions in advance directive

SDM lack authority to contravene patient’s instructions (or known preferences or best interests)

Limits of Advance Directives

Not completed

Not found

Not informed

Not clear

Not completed

28%

30%

Not found

65-76% of physicians whose patients have advance directives do not know they exist

Individuals fail to make & distribute copies

• Primary agent

• Alternate agents

• Family members

• PCP

• Specialists

• Attorney

• Clergy

• Online registry

Not informed

Not clear

if ___,

then ___

Trigger terms vague

“Reasonable expectation of recovery”

75% 51% 25% 10%

Plus: prognosis uncertain

Preferences vague

“No ventilator” Ever Even if temporary

More technology is the default

Patient must opt out

POLST

POLST Provider Order Life Sustaining Treatment

POLST Physician Order Life Sustaining Treatment

POST Physician Order for

Scope of Treatment

MOST Medical . . .

MOLST Medical . . .

COLST Clinician . . .

Many acronyms

Same concept

What is

POLST

Order

for LST

CATEGORIES OF LIFE SUSTAINING TREATMENTS

JAGS 58: 1241-1248, 2010 . A Comparison of Methods to Communicate Treatment Preferences in Nursing Facilities: Traditional Practices versus the Physicians Orders for Life-Sustaining Treatment (POLST) Program. Susan E. Hickman, PhD, Christine A. Nelson, PhD, RN, Nancy A Perrin, PhD, Alvin H Moss, MD, Bernard J Hammes, PhD, and Susan W. Tolle, MD.

For whom

Terminal illness

Advanced chronic progressive illness

Frailty

In last year of life

Others who want to define care

MOLST supplements AD

Does not replace

The present

Here & now

MOLST benefits

1. Bright color

Original MOLST printed on lilac card stock

But a copy has the same force as original

2. Single page

3. More informed

4. Immediately actionable

Provider Order Life Sustaining Treatment

No need to “interpret” advance directive

No need to “translate” into orders

5. Easy to follow

6. Better honored

Can follow

Will follow

7. Portable

Home LTC

Hospital EMS

8. Updatable

MOLST does not expire

MOLST can be revised or revoked at any time

Review with change in condition or location

Can be completed by surrogate, if patient lacks capacity

70% patient

30% surrogate

9. Proven Effective

Closes gap between what people want and what they get

Recap

Mostly well settled patient with capacity may refuse life-saving treatment contemporaneously

Mostly well settled patient without capacity may refuse life-saving treatment through advance instructions

Mostly well settled patient without capacity may refuse life-saving treatment through decision of authorized SDM

This is all “passive”

Refusing something (chemo, CPR, ventilator, CANH, antibiotics)

Contrast active means to hasten death

126

What is a medical futility dispute

127

128

Surrogate driven over-treatment

Surrogate

LSMT

Clinician

CMO

Consent always

130

Assisted Suicide

Illegal everywhere

“Whoever intentionally . . . assists another in taking the other's own life may be sentenced to imprisonment for not more than 15 years . . . .”

Minn. Stat. 609.215

“aid in dying”

Physician prescribing medication to a mentally capacitated, terminally ill patient, which the patient may ingest to bring about a peaceful death”

1997 SCOTUS

No Constitutional right

Not a “fundamental” right

Not a violation of equal protection

“States are presently undertaking extensive and serious evaluation of physician assisted suicide . . . .”

“In such circumstances, the . . . challenging task of crafting appropriate procedures for safeguarding . . . liberty interests is entrusted to the laboratory of the States . . .”

1994 Oregon

Ballot initiative 51%

In operation 1997 - ongoing

Terminal illness (6 months) Resident 18+ Capacity

Doc educates patient about all options – palliative care pain management hospice

Oral request 15 days 2nd oral request Written request 48 hours

Doc writes prescription

Patient gets at pharmacy

Must self ingest

Self ingest Patient takes final overt act leading to death

If physician did it, that would be euthanasia & crime everywhere USA

97% white

98% health insurance

90% enrolled in hospice

72% gone to college

2008 Washington

Ballot initiative 58%

May 2013

Vermont

Legislation instead of ballot initiative

Dec. 2009 Montana via court decision

Jan. 2014 New Mexico via court decision

June 2014 Quebec

February 2015

Activity in the states

Other exit options

In order of acceptability

Stop LSMT okay

AID – PAD 5 states

Euthanasia illegal

In order of acceptability

Stop LSMT AID – PAD Euthanasia

High dose Opioids

Mostly accepted

Risks respiratory depression and death

Double Effect 1. Action good in itself (not immoral) 2. Intend the good effect (foresee but

not intend bad effect) 3. Bad effect not necessary for good

effect 4. Proportionality (sufficiently grave

reason to risk bad effect)

More controversial --- palliative sedation to unconsciousness

VSED

Find existence intolerable Nothing to turn off Dehydrate = death 10-14

days Generally accepted, if

patient decides herself

Controversial to make advance decision

VAE IVAE

Voluntary active euthanasia: doctor administers lethal agent

Illegal everywhere in North America

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Thaddeus Mason Pope Director, Health Law Institute Hamline University School of Law 1536 Hewitt Avenue Saint Paul, Minnesota 55104 T 651-523-2519 F 901-202-7549 E Tpope01@hamline.edu W www.thaddeuspope.com B medicalfutility.blogspot.com